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Foreclosure Pilot Program

Foreclosure Pilot Program

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Published by: Foreclosure Fraud on Aug 20, 2012
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12/28/2013

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In summary, lessons learned from the implementation of the foreclosure program have

imparted a new wisdom about court management and efficient practices. This court project can

serve as a template for other courts which encounter the difficulties of a challenging year during

the foreclosure crisis. More specifically, there are basic conclusions and recommendations which

have utility and application for implementation of a foreclosure pilot program.

Conclusion 1 Standardize Review of Summary Judgment Submission

Upon implementation of the foreclosure program, new standards were set to raise the

caliber of pleadings, orders and ensure compliance with administrative orders. Here, the primary

issues were due process concerns. To standardize courtroom results, the summary judgment

checklist was used primarily to confirm proper notice, service of process and review for

mediation compliance. Secondly, the checklist was used to review loan documents, affidavits

and usage of the uniform summary judgment form. From a quality control perspective, summary

judgment review tested the sufficiency of the filings and provided a fair and balanced case

review. Throughout the duration of the foreclosure program it became clear that the

standardization of review was yielding superior results. More litigants were appearing in court

and parties were complying with the procedural requirements. Further, application of this review

resulted in more uniform results in summary judgment cases. While the initial implementation of

the review process was time consuming at first, the beneficial economies of scale which were

gained outweighed the costs. In short, usage of the checklist improved the effectiveness of court

management and resulted in more equitable proceedings.

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Recommendation 1: Implementation of Case Review for Uniformity

In writing this recommendation, the hands-on experience of the foreclosure program,

with all its ups and downs, provides guidance. These lessons learned illustrate how the

foreclosure program could be improved when implemented, if given another opportunity. The

success of the standardized case review checklist has been tried and proven. In this experience,

it provided: (1) assurance of due process, (2) raised the standard of pleadings, (3) ensured

compliance with procedural requirements, and (4) benefitted the court system with gains in

economies of scale. In fact, the components of the case review can be expanded and applied to

other areas of law to further maximize its potential. In this experience, the case review tool was

helpful to everyone, from judges to litigants, except those that were noncompliant with

procedures.

From the standpoint of the judiciary, summary judgment hearings became more

simplistic, since case review provided a snapshot of the case, identifying any deficiencies.

Although there was a learning curve, plaintiff law firms addressed issues before summary

judgment rather than risking denial of their motion. Similarly, defendants became more familiar

with the process, participated in mediation and court proceedings and explored viable options.

While the impact of the standardized case review is difficult to quantify, the increase in active

participation of defendants in the foreclosure is indicative of overall results. In summary, the

foreclosure program achieved the fair and effective court management goal.

Conclusion 2: Creation of Section 50 for Stagnant Cases

A final variable in assessing the foreclosure program is a determination as to whether

aged, stagnant cases were effectively closed. The relative age of the remaining open cases has

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declined sharply due to the clearing of 41,353 cases. However, it is unclear as to how many of

the closed cases represent the stagnant aged caseload. While statistics were collected and

maintained to identify case closure, the foreclosure program did not further breakdown the

statistics as to older cases. Part of the reason for this is the implementation of Section 50, a

special division to manage the older stagnant cases midway through the foreclosure program.

While statistics from the start of Section 50 would have been helpful, it would not present an

accurate picture as to the closure of older cases since a portion of these cases had been closed in

Section 85. This overlap would skew the statistics and prove unreliable.

Recommendation 2: Trials Are More Efficient in Foreclosure Cases

Case management hearings can sometimes be useful to move stagnant cases through the

courts. In the initial months of the foreclosure program, case management was used to identify

the obstacles in older Section 50 cases and to reduce or eliminate them so that the case can

progress. However, the efficacy of case management hearings declines sharply after two

hearings. The basic premise is that if you cannot get it done in two hearings, it becomes a waste

of time and resources.

Based on this experience, the recommendation is to set trials to move cases. Other than

summary judgment hearings, the most effective tool to manage foreclosure cases is to set a trial

date. Just setting a trial date flushed out the real controversies, with only a fraction of the cases

actually going to trial. Many cases took voluntary dismissals rather than attempt to prove their

case. On an average setting of 50 foreclosure bench trials, only three cases would proceed to

trial. See appendix D. Administrative Order Setting Foreclosure Cases for Non-Jury Trial.

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Conclusion 3: Limited Resources Hamper Efficiency

Automated scheduling for trials and summary judgment hearings was a luxury which the

foreclosure program did not enjoy. Many employees were assigned to perform this function

which could have been expedited with new technology. However, the limited resources of the

court hampered efficiency in the scheduling of trials and summary judgment hearings. Effective

use of technology would have dramatically improved productivity.

Recommendation 3: Improve Efficiency with Automated Scheduling

At the onset, commit to technological implementation to improve efficiency and provide

judicial economy. E-filing and automated scheduling would tremendously improve productivity

and provide benefits to all parties.

Conclusion 4: Rejection of Summary Judgment Case Packets Proves to be Ineffective and

Inefficient

This pilot program experience has demonstrated that the policy of rejecting summary

judgment packets due to deficiencies is counterproductive. Besides assuming the burden of

checking litigant’s pleadings for compliance, the initial policy of rejecting submissions and

identifying deficiencies did not provide a measurable benefit to the courts. Multiple submissions

which repeated errors continued to be sent from the law firms, wasting valuable judicial

resources.

Recommendation 4: Record Case Deficiency and Schedule Hearings on Summary

Judgments

The new policy of recording the deficiencies in the case review for the judge, but not

rejecting the submission has proved more worthwhile. This way, the judge can deny the motion

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or give the litigant time in which to remedy the deficiency. Either way, it is appropriately within

judicial discretion to decide the outcome, enter an order and compel compliance with the order.

Conclusion 5: Statistics Are Critical to Measurement of Program.

Upon the initiation of the foreclosure program, it was determined that everything should

be recorded and statistics should be generated to illustrate progress of the case along the way.

Despite best efforts, and the design of special software to track the cases, experience has proven

that the program needed to generate even more statistical data to analyze the success of the

program. Some of these deficiencies can be attributed to the failings of the computer program,

some are simple human errors in the recording of information, but more than often, separate

statistics were not kept to isolate the productivity of the Section 85 and Section 50. Since these

Sections operated different approaches, this data would have been useful in the measurement of

success.

Recommendation 5: Record Statistical Events at Every Step

The importance of statistics cannot be underestimated. Whatever you are counting, count

it twice, three times and then take a look at it from another point of view. In the middle of pilot

program operations it was not always apparent that there were correlations between variables

which would have allow the program to adjust more readily. The benefit of additional statistical

data would have demonstrated the utility of a mid-course correction, without waiting six months

into the program. Identification of clearance rates earlier in the program would have

demonstrated the efficiency of management. More and better statistics provide the basis for

maximizing the judicial resources to everyone’s benefit.

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Conclusion 6: Staffing Issues Delay Initiation of Program

The foreclosure program was impacted from the beginning by inadequate staffing. Until

the funding for the foreclosure program was available, openings for jobs could not be publicized,

interviews could not be conducted and staff could not be hired. This initial delay in start up

operations had a detrimental effect on getting the program underway, resulting in a two (2)

month loss up front. Similarly, as the program came to a close in its last two (2) months,

qualified employees left the job for more permanent employment. Inadequate staffing for the

total of four (4) months hampered operations, as the foreclosure program continued with a

skeleton crew. While this problem is symptomatic of any temporary pilot program, it presents

unique challenges for management, supervision and work production.

Recommendation 6: Post Job Opportunities Early

The human resource issues could be better managed with proper planning. Early postings

of job announcements on the website and circulated among the universities do not require the

expenditure of funds not allocated yet. Additionally, the actual job listings should be ready to

print immediately when the funds become available. From a human resource standpoint,

interviews should be scheduled as qualified applicants become available; rather than waiting to

conduct interviews all at once. Unfortunately, retention of qualified employees as a program

ends is more problematic. Whenever possible, we attempted to secure permanent employment

for proven employees as they continued to work through program termination.

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Conclusion 7: Communication was Effective and Constant

Communication was a genuine strength of the foreclosure program. Town hall meetings,

open house for the new foreclosure program, e-mail letters advising law firms of changes and

website access with the opportunity to send basic inquiries were assets. The strength of these

lines of communication with the customer base improved the efficiency of court management.

Table 8 below represents a sample of e-mail blasts that were sent to all foreclosure law

firms. Town Hall meetings were frequently held to keep everyone informed and ease the

transition to new procedures.

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